America First Legal Foundation v. United States Department of Agriculture

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 5, 2024 Decided January 24, 2025
No. 23-5173
AMERICA FIRST LEGAL FOUNDATION,
APPELLANT
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-03029)
Daniel Epstein argued the cause for appellant. With him
on the briefs were Reed D. Rubinstein and Michael Ding.
Jay Alan Sekulow, Jordan Sekulow, Andrew J. Ekonomou,
Benjamin P. Sisney, and Nathan Moelker were on the brief for
amicus curiae the American Center for Law and Justice in
support of appellant.
Jeremiah L. Morgan and William J. Olson were on the
brief for amicus curiae Citizens United in support of appellant.
Jeffrey E. Sandberg, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were

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Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Mark B. Stern, Attorney.
Before: PILLARD and GARCIA, Circuit Judges, and
ROGERS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARCIA.
GARCIA, Circuit Judge: The district court held that
strategic plans submitted by federal agencies to the White
House are protected by the presidential communications
privilege and therefore exempt from Freedom of Information
Act disclosure. We agree.
I
On March 7, 2021, shortly after President Biden took
office, he issued Executive Order 14019, Promoting Access to
Voting, 86 Fed. Reg. 13623 (Mar. 7, 2021). The Order states
that “[i]t is the policy of my Administration to promote and
defend the right to vote for all Americans who are legally
entitled to participate in elections.” Id. at 13623. Section 3 of
the Order instructs agencies to “consider ways to expand
citizens’ opportunities to register to vote and to obtain
information about, and participate in, the electoral process.”
Id. It then directs the “head of each agency” to “evaluate ways
in which the agency can, as appropriate and consistent with
applicable law, promote voter registration and voter
participation.” Id. The key provision at issue here, Section
3(b), then requires each agency to submit to the Assistant to the
President for Domestic Policy a “strategic plan outlining the
ways identified under this review that the agency can promote
voter registration and voter participation.” Id. at 13624. The
plans were due within 200 days of the date of the Order. Id.

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After that deadline, America First Legal Foundation
(AFL) submitted Freedom of Information Act (FOIA) requests
for the strategic plans of fourteen different agencies.1 FOIA
requires federal agencies to make their records available to the
public, subject to nine exemptions for specific categories of
material. 5 U.S.C. § 552(a)–(b).
When the agencies did not respond favorably to those
requests, AFL initiated this suit to compel disclosure of the
documents. The agencies moved for summary judgment,
arguing that the plans were protected by FOIA Exemption 5,
which applies to “inter-agency or intra-agency memorandums
or letters that would not be available by law to a party other
than an agency in litigation with the agency.” Id. § 552(b)(5).
Exemption 5 is understood as “incorporat[ing] the privileges
which the government enjoys under the relevant statutory and
case law in the pretrial discovery context.” DOJ v. Julian, 486
U.S. 1, 11 (1988) (alteration in original) (quoting
Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S.
168, 184 (1975)). The agencies invoked the presidential
communications privilege, which is one of the privileges
Exemption 5 incorporates. See Loving v. DOD, 550 F.3d 32,
37 (D.C. Cir. 2008). Among other supporting materials, the
agencies submitted a declaration from Richard Sauber, Special
Counsel to the President, as well as declarations from
representatives of each defendant agency. The district court
1 Those agencies are the Department of Agriculture, Department
of Education, Department of Energy, Environmental Protection
Agency, Department of Health and Human Services, Department of
Homeland Security, Department of Housing and Urban
Development, Department of the Interior, Department of Labor,
Small Business Administration, Department of State, Department of
Transportation, Department of the Treasury, and Department of
Veterans Affairs.

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granted the agencies’ summary judgment motion. Am. First
Legal Found. v. USDA, No. 22-cv-3029, 2023 WL 4581313
(D.D.C. July 18, 2023). AFL timely appealed.
II
We review the district court’s grant of summary judgment
de novo. Gallant v. NLRB, 26 F.3d 168, 171 (D.C. Cir. 1994).
“In the FOIA context this requires that we ascertain whether
the agency has sustained its burden of demonstrating that the
documents requested are . . . exempt from disclosure under the
FOIA.” Id. The agencies may “carry that burden by submitting
declarations ‘attesting to the basis for the agency’s decision.’”
Citizens for Resp. & Ethics in Wash. v. DOJ, 58 F.4th 1255,
1262 (D.C. Cir. 2023) (quoting Campbell v. DOJ, 164 F.3d 20,
30 (D.C. Cir. 1998)). Summary judgment that a FOIA
exemption applies “is warranted on the basis of agency
affidavits when the affidavits describe the justifications for
nondisclosure with reasonably specific detail, demonstrate that
the information withheld logically falls within the claimed
exemption, and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith.”
Id. (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C.
Cir. 2009)).
A
The presidential communications privilege protects
documents “that reflect presidential decisionmaking and
deliberations and that the President believes should remain
confidential.” In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir.
1997). The privilege reflects the idea that the “President and
those who assist him must be free to explore alternatives in the
process of shaping policies and making decisions and to do so
in a way many would be unwilling to express except privately.”
United States v. Nixon, 418 U.S. 683, 708 (1974). The

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Supreme Court has explained that the privilege is “fundamental
to the operation of Government and inextricably rooted in the
separation of powers under the Constitution.” Id.
Because the President necessarily relies on others to fulfill
his constitutional role, we have held that the privilege must
extend to documents “solicited and received” not just by the
President, but also by “immediate White House advisers with
broad and significant responsibility for investigating and
formulating the advice to be given the President.” Loving, 550
F.3d at 37 (cleaned up) (quoting Jud. Watch, Inc. v. DOJ, 365
F.3d 1108, 1114 (D.C. Cir. 2004) (Judicial Watch I)); see In re
Sealed Case, 121 F.3d at 750–52. Thus, any material that an
agency submitted to the Office of the President may retain its
privileged status even if it “traveled up the chain of command
before the President received it.” Loving, 550 F.3d at 40; see
Judicial Watch I, 365 F.3d at 1117. Further, where the
privilege is properly invoked, it “applies to documents in their
entirety, and covers final and post-decisional materials as well
as pre-deliberative ones.” In re Sealed Case, 121 F.3d at 745.
B
To justify invoking the presidential communications
privilege here, each of the defendant agencies referred to the
declaration of Richard Sauber, Special Counsel to the
President. Sauber’s declaration explains that the White House
solicited the strategic plans “to inform future policy
developments on voting access and to assist [the Domestic
Policy Council] in formulating advice to the President on
voting matters.” J.A. 124 ¶ 7. After the plans were submitted
to the White House, the head of the Domestic Policy Council
(Ambassador Susan Rice) and her staff compiled information
from the plans “for Ambassador Rice’s use in White House
policy formulation and in briefing the President.” J.A. 125

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¶ 12. “This advice, in turn, informed the President on the
extent of agency actions and proposals on relevant voting
matters and on areas where further Executive Branch action
might be needed or considered within the scope of the
President’s executive authority.” Id. The White House also
engaged in “further discussions with the Defendant agencies
regarding the content of their plans” and “the agencies’
potential plans for implementation.” Id. ¶ 11. Sauber attested
as of January 2023 that “some of these discussions remain
ongoing.” Id.
In short, Sauber explained that the plans were created and
submitted to the Office of the President at the President’s
request and then used to inform confidential deliberations and
decisionmaking by the President and his close advisors. If
credited, that explanation would support the agencies’
invocation of the presidential communications privilege under
our precedent. See, e.g., Loving, 550 F.3d at 37, 40.
C
The primary issue on appeal is a narrow and fact-specific
one. AFL does not dispute that the presidential
communications privilege would apply to the strategic plans if
the Sauber declaration’s statements about the nature and use of
the documents are accurate.2 Instead, AFL contends that the
2 This case does not present broader questions about the scope
of the presidential communications privilege. AFL argued in its
reply brief that the privilege protects only deliberations pertaining to
the President’s “quintessential and nondelegable” powers, and that
the voting-related actions here do not fit that bill. Reply Brief 9
(quoting In re Sealed Case, 121 F.3d at 752). AFL forfeited this
argument by failing to raise it in the opening brief, and we decline to
address it. See Abdullah v. Obama, 753 F.3d 193, 199 (D.C. Cir.
2014).

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declaration contradicts other evidence in the record. See
Larson, 565 F.3d at 862. In particular, AFL argues that the
remainder of the record proves the strategic plans were not
inputs into presidential deliberations and decisionmaking, but
instead documented “actions to be taken by each agency,
independent of any decisionmaking or deliberation by the
President.” Appellant’s Brief 13. AFL’s primary contention is
that the text of the Executive Order supports its view. AFL also
posits that the individual agency declarations and an
informational fact sheet on the Order published by the White
House support its position. We disagree. The Sauber
declaration and the agencies’ position are entirely consistent
with the remainder of the record.
Start with the Executive Order. Section 3 of the Order
required all agencies to “consider” and “evaluate” ways to
enhance voter registration and participation. 86 Fed. Reg. at
13623. It then ordered each agency to submit to a close
presidential advisor a “strategic plan outlining the ways
identified under this review that the agency can promote voter
registration and voter participation.” Id. at 13624. This
language is naturally read as instructing agencies to think
through and describe for the White House the steps they could
take to further the President’s stated policy goals, so that the
President and his advisors could consider next steps. That
understanding also fits the context in which the Order was
issued. It is perfectly sensible for an incoming President,
shortly after his inauguration, to instruct all federal agencies to
consider ways they could further a “policy of [the new]
Administration” and report back. Id. at 13623. Such reports
are natural inputs into further presidential deliberation and
policymaking, just as the Sauber declaration describes. AFL’s
position—that the President merely asked for agencies’ plans
for informational purposes and forswore further deliberation

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and action in this policy area—is unsupported by the Order’s
text and is, at best, highly counterintuitive.
In response, AFL emphasizes that other sections of the
Executive Order asked certain actors to “provide
recommendations to the President,” whereas Section 3 does not
use the word “recommendation.” See id. at 13625. Per AFL,
if the strategic plans were truly meant to inform presidential
deliberations and decisionmaking, the Order would have
described them as providing “recommendations” too. That
assertion is unconvincing. Calling for “recommendations” is
not the only way to ask for submissions that would inform later
deliberations. The Executive Order tasked the agencies with
exploring all possible strategies at their disposal to promote
voter registration and voter participation, and with presenting
those ideas to the White House. Listing the universe of
possible actions is like offering a menu: It is a list of all options
that does not necessarily recommend or endorse any of them.
A recommendation, by contrast, is an actual endorsement of a
subset of those possibilities. Both can be inputs into later
decisionmaking. Either, if used in presidential
decisionmaking, can fall within the protection of the
presidential communications privilege. The fact that the Order
did not describe the strategic plans as providing
“recommendations” therefore does not contradict Sauber’s
declaration.
Other record evidence further supports Sauber’s
declaration. A template that the White House provided the
agencies as a guide stated expressly that “[l]isting an action in
this strategic plan does not commit your agency to
implementing the action.” J.A. 124 ¶ 8. That language
corroborates that the strategic plans were meant to inform the
White House of potential actions, not simply to report on
actions the agencies independently decided to take.

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The agencies’ individual declarations reflect the same
understanding. For example, the Department of Housing and
Urban Development explained that the strategic plan it
submitted to the White House “listed proposals that could be
implemented,” but that the strategic plan “did not summarize
what the Department would in fact implement or what had been
implemented.” J.A. 229 ¶ 20. Similarly, the Department of
Transportation declaration states that its strategic plan
“include[d] all possible actions the agency could take within
the bounds of its existing authorities,” but that the agency “was
not suggesting implementation of all the possible actions listed
in its Plan.” J.A. 180 ¶ 5. The declarations from the other
defendant agencies contain similar language. See, e.g., J.A.
116–17 ¶¶ 18, 20 (Small Business Administration plan
contained “details of potential strategies” to be used in “the
ongoing consultative process” between the agency and the
White House); J.A. 155 ¶ 14 (Department of Interior plan
contained “details of possible strategies as to various means of
implementing the Executive Order”); J.A. 253 ¶ 14
(Department of Health and Human Services plan contained
“potential actions”); J.A. 263 ¶ 5 (Environmental Protection
Agency plan contained “proposed actions”).
Further undermining AFL’s view that the strategic plans
simply reported final agency decisions is the fact that,
according to several agencies, many of the actions identified in
the strategic plans were not implemented following discussions
with the White House. For example, the Department of Interior
declaration stated that the strategic plans “contain[ed]
recommended strategies that the Department has not
implemented, that the White House rejected and the
Department did not pursue further, and/or that were determined
to not be feasible after further consultation.” J.A. 156 ¶ 15.
Similarly, the Department of Agriculture declaration explained
that “none of the actions proposed have been implemented in

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the exact manner proposed in the Strategic Plan, and the
majority of the proposed actions have not been implemented
whatsoever.” J.A. 135 ¶ 18. These declarations are entirely
compatible with the facts as the government describes them,
but are impossible to square with AFL’s view.
In response, AFL claims that three agency declarations
“admitted that their strategic plans consisted entirely of the
completed actions that the agencies had already taken in
response to the executive order.” Appellant’s Brief 22. AFL
overstates the case. One declaration explained that the
agency’s plan “included descriptions of actions [the agency]
planned to take with respect to voting access.” J.A. 245 ¶ 6.
Another stated that its plan “identified three key service areas
to promote access to voting and listed responsive actions in
each of those categories.” J.A. 258 ¶ 9. And the third makes
clear that the agency’s plan solely “outlin[ed] ways in which
[the agency] could help promote voter registration and
participation.” J.A. 263 ¶ 5. Nowhere in these declarations do
the agencies state or imply that the proposed actions in the
strategic plans were either final or already implemented. More
importantly, the declarations fully comport with Sauber’s
explanation that the agency’s submissions would inform
presidential deliberation and decisionmaking.
Finally, AFL argues that the agencies’ position is
inconsistent with a White House Fact Sheet released on
September 28, 2021. That document, published just after the
200-day deadline set by the Executive Order, highlighted
“early actions to implement the President’s Order” that several
agencies had pursued. Fact Sheet: Biden Administration
Promotes Voter Participation with New Agency Steps, THE
WHITE HOUSE (Sept. 28, 2021), https://perma.cc/D3CH-
C2EG. But the fact that some agencies had committed to
certain policies or had some underway is entirely consistent

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with Sauber’s statement that the White House solicited those
plans to inform further presidential deliberation and
decisionmaking. And nothing else in the Fact Sheet suggests
otherwise. To the contrary, the Fact Sheet noted that more
actions would follow in “the weeks and months to come,” as
part of the “President’s efforts to protect the right to vote.” Id.
In sum, the record on appeal not only is consistent with,
but also supports, the Sauber declaration. The strategic plans
the agencies submitted were “solicited” by the President, were
“received” by his “immediate White House advisers [with] . . .
broad and significant responsibility for investigating and
formulating the advice to be given the President,” and served
to inform “presidential decisionmaking and deliberations.”
Loving, 550 F.3d at 37 (cleaned up). Applying the privilege
here therefore serves the “need for confidentiality in the
communications of [the President’s] office” and “protect[s] the
effectiveness of the executive decision-making process.”
Judicial Watch I, 365 F.3d at 1115 (citations omitted).
D
AFL makes three additional arguments, but none are
persuasive.
First, AFL raises the possibility that the agencies are
abusing the presidential communications privilege to create a
body of “secret law” that conceals agency action and
deliberation from the public. Appellant’s Brief 7. We are not
convinced. We have held that an agency is “not permitted to
develop ‘a body of secret law, used by it in the discharge of its
regulatory duties and in its dealings with the public, but hidden
behind a veil of privilege because it is not designated as formal,
binding, or final.’” Elec. Frontier Found. v. DOJ, 739 F.3d 1,
7 (D.C. Cir. 2014) (quoting Schlefer v. United States, 702 F.2d
233, 244 (D.C. Cir. 1983)). The concern is that agencies might

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take steps to withhold “‘binding agency opinions and
interpretations’ that the agency ‘actually applies in cases before
it.’” Id. (quoting Sterling Drug, Inc. v. FTC, 450 F.2d 698, 708
(D.C. Cir. 1971)). But like other agency records we have
previously found not to implicate the doctrine, the strategic
plans at issue here “do not constitute or establish ‘law’ in the
sense of setting forth a decision that binds subordinates or a
regulated party.” Jud. Watch, Inc. v. DOD, 913 F.3d 1106,
1113 (D.C. Cir. 2019) (Judicial Watch II). Instead, the
strategic plans simply “document advice given up the chain to
someone (the President) who then made a decision.” Id. The
strategic plans thus reflect the “free flow of ideas” between
each agency and the President; they are not “the law itself.”
Sterling Drug, 450 F.2d at 708. That conclusion does not mean
that any agency’s action or the reasons for it will remain secret:
The presidential communications privilege poses no bar to
members of the public who submit FOIA requests for records
concerning implemented agency actions related to voting
access. The distinctive fact about this case is that AFL sought
only the specific, confidential agency communications that the
President requested and that his Office then used to formulate
advice for him.
Second, AFL contends that the district court improperly
“deferred” to the Sauber declaration’s interpretation of the
Executive Order. Appellant’s Brief 18. We see no indication
that the district court did so. The district court instead used the
sworn facts in the Sauber declaration as evidence of how the
strategic plans were developed and used in the Office of the
President. Am. First Legal Found., 2023 WL 4581313 at *6–
7. There is nothing wrong or unusual about that approach. The
government “typically” relies on such affidavits to “prov[e] the
applicability of claimed exemptions” in a FOIA case. ACLU v.
DOD, 628 F.3d 612, 619 (D.C. Cir. 2011). And, as we have
explained, the district court properly credited the Sauber

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declaration because it is not “controverted” by “contrary
evidence in the record nor by evidence of agency bad faith.”
Larson, 565 F.3d at 862.
Third, AFL challenges the government’s declarations as
impermissible “post hoc” rationalizations. Appellant’s Brief
18. This position is also baseless. Although the declarations
were written in response to the present litigation, they describe
the facts necessary to determine whether the privilege applies.
As explained, the use of such declarations is commonplace in
FOIA litigation, and the declarations are consistent with the
record evidence. See, e.g., Judicial Watch II, 913 F.3d at 1111–
12 (relying on the sworn declaration of an agency FOIA officer
stating that the requested documents were used to brief the
President and his advisors).
III
The judgment of the district court is affirmed.
So ordered.

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